Protecting Free Speech in the Digital Age

Who should control the Internet? Author Dawn Nunziato says regulators are at a crossroads in determining the future of online communications. Nunziato, a professor of law at the George Washington University Law School, is author of "Virtual Freedom: Net Neutrality and Free Speech in the Internet Age," published by Stanford University Press in August.

GUEST BLOGGER: Dawn Nunziato

The United States and the European Union are poised to address an issue that affects the free speech interests of Internet users around the world. In the past ten days, both the Federal Communications Commission and the EU have engaged on the issue of net neutrality, a principle requiring that Internet users themselves -- not their broadband providers -- enjoy the right to control what content and applications they can access.

After experimenting for several years with a course of deregulating broadband providers, the FCC is now heading in the direction of requiring broadband providers to serve as neutral conduits for our Internet communications. The EU should do so as well. The future of the Internet as an open, global communications medium requires no less.

Following the FCC's deregulation of broadband providers beginning in 2002, these providers have enjoyed the right to discriminate against Internet expression of which they disapproved or that competed with their commercial interests. Broadband providers exercised this power by outright blocking and slowing down peer-to-peer and Voice over Internet applications, as well as email communications, that they disfavored for one reason or another.

In 2007, for example, Comcast blocked access to legal peer-to-peer file-sharing applications and then withheld information from its users (and the FCC) about its actions. The FCC was right to reverse its deregulatory course by demanding that Comcast cease these discriminatory actions and come clean with its subscribers about its network management practices.

And the FCC's recent steps toward extending net neutrality obligations beyond this particular provider are also to be commended. Discriminatory blocking and degrading of applications and content by broadband providers is difficult to detect or remedy by ordinary Internet users. And, to make matters worse, even if we could detect such discriminatory practices, many of us currently have little or no choice among broadband providers.

Because such unwarranted discrimination by broadband providers cannot easily be remedied by the market, it is up to the government to intervene to mandate that broadband providers adhere to principles of net neutrality.

Mandating net neutrality is essential to preserving our free speech interests on the Internet. As we increasingly live and work in a world in which communications take place via the Internet, the powerful few corporations that serve as the conduits for these communications must be made to fulfill their conduit function neutrally and free of discrimination.

Just as the telephone and postal services have long been required to serve as neutral conduits for our communications and have been prohibited from censoring legal expression, so too should broadband providers be required to adhere to nondiscrimination obligations. Although broadband providers may claim that their ability to discriminate in favor of or against certain expression advances their economic interests, these commercial interests should not be allowed to trump our free speech interests.

The FCC and the EU should act now to require that the handful of powerful companies who serve as the gatekeepers for Internet expression fulfill their obligations to the public free of discrimination and censorship to protect our free speech interests in the digital age.

Comments

Nunziato's hits on one central reason for making Net Neutrality the law. The Internet is too important for free speech in the 21st century to be subject to the whims of powerful phone and cable companies -- companies that have already demonstrated their penchant for blocking new ideas and innovations via the Web.

But by posting this as a blog, the Post doesn't go far enough to right the wrong its editors committed last week, when they printed an editorial against Net Neutrality without revealing that the Washington Post Co. had its own economic incentive to block free speech on the Web.

The Post's Sept. 28 editorial "The FCC's Heavy Hand" was gift wrapped for the narrow special interests of the phone and cable lobby. It stated that Net Neutrality would hurt investment in a "vibrant and well-functioning marketplace" without recognizing that the opposite was true -- that carriers working under neutrality conditions had invested tens of billions of dollars in network buildout and improvements.

But the Post editorial not only suffered from a lack of accuracy but one of disclosure.

One of the companies to benefit from a world without Net Neutrality is Cable One, an ISP active in 19 states that might stand to benefit financially by discriminating against content and stifling the free flow of online communications. One of the primary owners of Cable One is -- you guessed it -- the Washington Post Co.

Given the Post's recent embarrassment over paid editorial salons, editors would well to do a better job of minding the firewall that allegedly separates news operations from business back offices.

Its time that the Post’s ombudsman addressed this oversight and the company came clean whenever it crosses the line that separates honest opinion from commercial self-interest.

Tim Karr
Free Press

Posted by: sagecast | October 5, 2009 7:27 AM

It is simply not true to state that for years broadband providers “have enjoyed the right to discriminate against Internet expression of which they disapproved or that competed with their commercial interests.”

Every day when we go online, it is plainly evident that consumers are free to go anywhere they choose and share any opinion they like on the Internet. In fact, FCC principles have been in place for years helping safeguard the free and open Internet we all enjoy today.

There’s a reason proponents of more Internet regulation point to the same handful of years-old missteps. These early issues were exceedingly rare and promptly resolved in favor of consumers. This is why The Post’s own editorial board noted that “Mr. Genachowski failed to convincingly answer the most important question of all: Is this intervention necessary?”

Many prominent network engineers are now weighing in on precisely this question. And, they are expressing deep concern about the impact to consumers and American innovation of a growing government role in the day-to-day operations of the Internet.

All sides of the ‘net neutrality’ debate support free speech. All Americans enjoy it on- and off-line in our society today. Given these central facts, we should focus this debate on where we truly differ: Whether a significant expansion of the government’s role in the Internet’s operations is harmful or helpful to our economy and our society.